Today, evolution picks up its machete and pith helmet, attempting to hack its way through the NSA “spy” story that has been the subject of countless news stories and media polls.
Much has been written in the blogosphere on this topic. Minds are made up, positions are hardened, and the battle lines have been drawn. It is now the topic of a “grass-roots” letter-writing campaign organized by Democratic activists targeted at Kansans, because Sen. Pat Roberts (R-KS) is Senate Intelligence committee chairman. The Kansas right-wing blogosphere, on this topic, is nowhere to be found; and so I sally forth alone.
I, however, am going to start from the beginning. The result of that will be that I am months behind others, and that you may see points made here that you feel have been refuted elsewhere; but I feel it’s important to start from the beginning.
So, let’s start from the beginning, with the New York Times story that touched it off:
WASHINGTON, Dec. 15 Â- Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”
The story is very long, but you should take the time to read it all.
Some thoughts (again in the absence of what has happened since) follow.
First, the program did produce positive results. From the eleventh paragraph:
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
Second, the timing of this story leaves questions in my mind. For one, one of the authors of this piece, James Risen, had a book coming out about this topic. The Times says it sat on the story for a year in order to “conduct additional reporting” in the light of the fact that this program was classified (which, in my mind, is another issue regarding the legality of this leak) and because the White House asked them not to reveal information that would jeopardize on-going investigations. The book, which is said to contain much the same information as this Times story, was submitted to its publisher by Risen three months before this story ran. For another, this story — after having been sat on for a year — was released a day after successful Iraqi elections, and also as a crucial vote was scheduled on the PATRIOT Act. I think that anyone who thinks that is a coincidence is either naive or willfully blind.
Finally (for today), just what exactly am I supposed to be mad about (on the basis of this story — remember, we’re starting from the beginning)? Title 50, Chapter 36, Subchapter I, section 1802 of U.S. code says:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
Some people say that the definition of “foriegn power” which is in section 1801 of the same code does not include al Qaeda or other “stateless” terrorists. What if those terrorists receive backing from some nation or nations? What about from agents of those nations acting “alone”? I plan to address that question as best I can in later posts.
Also needing to be addressed are possible motivations for his critics, which can be, in most cases, summed up by opportunism, political posturing, the cachet offered by an “activist media” attempting to “seek the truth” — a media many of the political posturers are an enthusiastic part of, and a desire to see BushCo dragged off in chains, because Goddammit, he’s so…. evil, and he positively must be guilty of something; and those who simply do not believe that the War on Terror is an actual “war” and is akin to criminal enforcement, like the “War on Drugs” (which is a misnomer, describing something that is clearly not a real war, and one which I have my own mixed feelings about at that). The latter sort there is simply no argument possible with.
None of that is to suggest that there are not legitimate areas for this Administration to come in for criticism on this or any other issue, as I think I’ve demonstrated in many other posts. There are, and there are legitimate legal questions here; all of which I hope to address in future posts. I require much more information before putting such a neat bow on the whole thing.
UPDATE: Current news and questions relating to the Times’s motivations.
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